Frlekin v. Apple Inc.

Facts

Apple’s written “Employee Package and Bag Searches” policy required retail-store employees to submit to a search of any bag, package, purse, backpack, briefcase, or personal Apple device before leaving the store — on every exit, including breaks, lunch, and end of shift. (8 Cal.5th at pp. 1042–1044.) The policy directed employees to “[f]ind a manager or member of the security team … to search your bags and packages before leaving the store,” and not to “leave the store prior to having your personal package or ba[g] searched.” (Id. at p. 1043.) Accompanying guidelines instructed managers to ask the employee to open every bag, remove items Apple sells, and verify the serial number of any personal Apple device against a “Personal Technology Card.” (Id. at pp. 1043–1044.) Noncompliance could lead to discipline “up to and including termination.” (Id. at p. 1043.) Employees clocked out before the search and were not paid for the time spent locating a manager and waiting for and undergoing the search, which could consume several minutes and, at busier times, considerably longer. (Id. at pp. 1042–1044.)

Procedural history

The plaintiffs, a class of Apple retail employees, sued for the unpaid search time. The federal district court granted summary judgment for Apple, reasoning that the searches were not compensable because employees could avoid them by choosing not to bring a bag. (8 Cal.5th at pp. 1042, 1044.) On appeal, the Ninth Circuit found no controlling California authority on whether such time is compensable under state law and certified the question to the California Supreme Court. (Id. at p. 1042.) The Court answered that the time is compensable; the Ninth Circuit then reversed the summary judgment in light of the answer. (Ibid.)

Issue

Is time spent by employees waiting for, and undergoing, required exit searches of bags, packages, or personal Apple devices voluntarily brought to work for personal convenience compensable as “hours worked” under the IWC wage order — specifically, under the “subject to the control of an employer” clause? (8 Cal.5th at p. 1042.)

Holding

Reasoning

1. The independent control clause. Reaffirming Morillion, the Court explained that the wage order’s “hours worked” definition has two independent phrases, and that “an employee who is subject to the control of an employer does not have to be working during that time to be compensated.” (8 Cal.5th at pp. 1045–1046.) Control exists when the employer “directs, commands or restrains” the employee so as to prevent the employee from using the time effectively for the employee’s own purposes. (Id. at p. 1047, quoting Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 975.) The inquiry is the degree of control, and “whether an activity is required” as a practical matter is part of that inquiry. (Id. at pp. 1053–1054.)

2. Apple controlled its employees during the searches. Under the policy, employees were confined to the store, required to find and wait for a manager or security-team member, forbidden to leave until the search was complete, and threatened with discipline for noncompliance — restraints the Court found amounted to significant control, indeed a degree of control “greater” than the compulsory bus travel held compensable in Morillion. (8 Cal.5th at pp. 1050–1051.) The searches plainly served Apple’s own loss-prevention business interests, not the employees’. (Id. at p. 1051.)

3. Rejecting the “optional” defense. Apple’s central argument was that, because an employee could avoid a search by not bringing a bag, the time resembled the optional employer-provided transportation that Morillion said “may not be compensable.” The Court disagreed on two grounds. First, the optional-transportation scenario in Morillion involved a service that “primarily benefit[s] the employee”; Apple’s mandatory searches, by contrast, benefit the employer and impose a greater degree of restraint. (8 Cal.5th at pp. 1050–1052.) Second, the Court declined to condition wage protection on employees forgoing the everyday practice of bringing a bag or smartphone to work; the “practical” realities of modern life make that “choice” largely illusory, and in any event the relevant question is the employer’s control once the policy is triggered, not whether the employee could have arranged life to avoid it. (Id. at pp. 1051–1052, 1054.)

4. Clocking out is not dispositive. That the searches occurred after employees punched out did not place them outside compensable time. The control inquiry — not the timecard — determines whether time is “hours worked,” so an employer cannot avoid liability by sequencing a controlled, mandatory activity after the clock-out. (8 Cal.5th at pp. 1045–1046, 1051.)

5. California does not follow the federal rule. The Court distinguished Integrity Staffing Solutions, Inc. v. Busk (2014) 574 U.S. 27, in which the United States Supreme Court held that time spent in security screenings is not compensable under the FLSA as amended by the Portal-to-Portal Act. (8 Cal.5th at p. 1045.) California has never adopted the Portal-to-Portal Act, and its wage orders define “hours worked” more broadly through the independent control clause; federal authority construing a narrower federal statute therefore does not govern. (Id. at pp. 1045–1046.) This is the same state-versus-federal divergence the Court emphasized in Morillion and would reaffirm in Troester v. Starbucks Corp. (2018) 5 Cal.5th 829. (Ibid.)

Significance

Frlekin extended Morillion’s control test to post-clock-out security and exit procedures, making it the leading California authority on the compensability of bag checks, security screenings, and similar employer-controlled exit activities — and a sharp illustration of how far California wage law diverges from the FLSA. Where Integrity Staffing excused identical-looking screening time under federal law, Frlekin requires payment under California’s control clause. Read together with Troester (no de minimis defense), Frlekin means that even brief, regularly recurring exit-search minutes must be paid; and it joins Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833 (on-call time) and Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257 (off-call rest periods) in the Court’s post-Morillion compensable-time line. See the Review’s practice guide on off-the-clock work and compensable “hours worked.”

Key quotes

“[W]e conclude the answer to the certified question is yes” — the exit-search time “is compensable as ‘hours worked.’” (Frlekin, supra, 8 Cal.5th at p. 1042.)

“When an employer directs, commands or restrains an employee … that employee remains subject to the employer’s control” and must be paid. (Id. at p. 1047.)

Read the full opinion (official slip opinion) →

Practice pointer

Open questions

The Court answered the certified question on the facts of Apple’s mandatory policy and did not chart every boundary of the control clause. Where exactly an activity crosses from a genuinely optional, employee-benefiting service (which Morillion suggested may be non-compensable) to employer-controlled time remains fact-intensive — for example, voluntary personal errands on the premises, or screenings an employee can bypass entirely. Lower courts continue to apply Frlekin’s reasoning to varied pre- and post-shift activities, including security and health screenings and the donning and doffing of required gear.